Section 106 of the National Historic Preservation Act: A Summary
What Does Section 106 Say?
Every federal agency must take into account the effects of actions it proposes to carry out, assist, or license, on historic properties – that is, places included in or eligible for the National Register of Historic Places (NRHP)(1)
The agency must also give the Advisory Council on Historic Preservation (ACHP) a reasonable opportunity to comment on such actions, which are called undertakings.
Agencies carry out both responsibilities by following Section 106 regulations (36 CFR Part 800) issued by the ACHP, or by following alternatives negotiated with the ACHP and others, usually in the form of programmatic agreements (PAs).
What is the Section 106 Process?
The “Section 106 process” is what an agency is supposed to do under the Section 106 regulations or a PA. Under the regulations(2), the process goes like this:
1. The federal agency contacts the State Historic Preservation Officer (SHPO)(3) and other interested parties, to initiate consultation about the undertaking(4).
2. In consultation with the SHPO, tribes, and others (“consulting parties”), the federal agency identifies historic places and determines how they will be affected. This involves:
a. “Scoping” – developing a scope of work for identifying places and effects(5).
b. Carrying out the scope, and thus identifying historic properties and effects. The regulations go into some detail about the steps ordinarily involved in doing this(6).
i. If there is disagreement about whether a place is eligible for the NRHP, they are worked out with (if necessary) the Keeper of the NRHP in the National Park Service(7).
ii. If there is disagreement about whether a place will be adversely affected (or affected at all), they are resolved with (if necessary) the ACHP’s assistance(8)
3. With the consulting parties, the federal agency looks for ways to resolve any adverse effects.
a. If the parties agree on a means of resolution, they execute a Memorandum of Agreement (MOA), which the federal agency is responsible for having implemented(9)
b. If they don’t agree, the federal agency seeks the comments of the ACHP(10). This is complicated, and agencies don’t like to do it.
i. The ACHP comments to the head of the agency(11).
ii. The head of the agency considers the comments and documents a final decision about whether to approve the undertaking. This responsibility can’t be delegated(12)
Common Ways That Federal Agencies Abuse Citizens in the Section 106 Process
— Fail to contact concerned people when initiating consultation, or “contact” them using letters that defy understanding.
— Fail to consult anyone during scoping.
— Mindlessly follow standard agency or SHPO procedures to identify historic places and effects (e.g. archaeological survey).
— Fail to identify affected cultural landscapes and traditional cultural places.
— Consider only an undertaking’s direct physical effects (demolition, bulldozing), ignoring less obvious effects (e.g. visual and auditory effects, effects on land use, fishing, etc.).
— Consider only impacts on archaeological sites or old buildings, ignoring landscapes, etc.
— Don’t consult interested parties until after identification work has been completed.
— Evaluate places only on the basis of their significance to archaeologists or architectural historians, ignoring the cultural and spiritual significance of such places to tribes, Native Hawaiians, and others.
— Assert that since no archaeological sites or old buildings will be bulldozed, the undertaking will have no adverse effect – regardless of impacts on other cultural values.
— Present concerned parties with pre‐developed MOA and ask them to sign.
— Pressure concerned parties to agree, asserting that if they don’t, their historic places will get no protection at all, or they will lose other benefits.
— Write and discuss everything in complex technical‐bureaucratic language, making it difficult for anyone but specialists (usually employed by the federal agency or the applicant for federal assistance or permits) to understand.
1 - 16 USC 470f; also see 16 USC 470w(5)
2 - Programmatic agreements and other “program alternatives” (See 36 CFR § 800.14) tend to prescribe similar processes, but are typically more complicated and internalized within an agency, minimizing consultation with external parties.
3 - Or the Tribal Historic Preservation Officer (THPO), if effects will occur on tribal land – that is, land within the external boundaries of an Indian reservation (See 16 USC 470w(14)). The THPO is also ordinarily consulted about other effects, particularly if the tribal government has designated the THPO as its point of contact.
4 - 36 CFR § 800.3(c), § 800.3(f)
5 - 36 CFR § 800.4(a), esp. 4(a)(4)
6 - 36 CFR §§ 800.4(b), (c), (d), § 800.5
7 - 36 CFR § 800.4(c)
8 - 36 CFR § 800.4(d), §800.5
9 - 36 CFR § 800.6, esp. § 800.6(c)
10 - 36 CFR § 800.7
11 - 36 CFR § 800.7(c)
12 - 36 CFR § 800.7(c)(4)